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Lawyers dispute ‘change of use’ of 47 W. Market St.

Attorneys for the landlord of 47 W. Market St and its neighbors in the Village of Rhinebeck debated how the Zoning Board of Appeals should handle a cease and desist order now under appeal at its Dec. 10 meeting.

At issue is the question of whether the building’s use has changed since 2011, when Dutchess County stopped operating a mental health facility at the site and handed it over to three non-profit organizations.

Village officials say the landlord should have come before the planning board to have the new use reviewed before the change took place. The landlord contends that the use hasn’t changed.

Attorney John Marvin, who represents the neighbors, explained why the building violates village zoning laws. “There are zoning issues that need to be addressed when you’re going to locate a facility, and that was skipped in this case,” he said.

Attorney Jeffrey Martin, who represents property owner Daniel Colnaghi in appealing the Aug. 1 order, told the board, “The current use and occupancy of the building does not in any way, shape, or manner violate any pertinent and appropriate sections of the Village of Rhinebeck Zoning Law.”

Martin spoke for roughly 10 minutes about the highlights of his case and his interpretations of the zoning laws. The board asked him to sit down when he began quoting a “Myth vs. Fact statement” that he wrote and brought to the meeting.

“You asked that we not consider irrelevant information, and this is pretty irrelevant to the question of zoning,” board member Rachel Cavell told him.

Martin said, “I have a right to respond. That’s just the way it is.”

According to the cease and desist order, the village’s Zoning Enforcement Officer, Bob Fennell at the time, believed that the building’s use changed in 2011 without being reviewed by the zoning board of appeals, as is required.

In Martin’s view, it was not necessary for his client to submit an application for site plan review in 2011 because there has been no increase in the amount of employees who work at the premise, the number of clients, nor the size of the building. “Every single witness that came here on behalf of the tenants said that they have less people there than they did when the county was there, ” he said.

According to documents from the village planning board, the site was approved to be a mental health day-treatment facility in 1975. In 2010, the county began planning to transition their services over to private entities, and in 2011, Occupations Inc., Hudson Valley Mental Health, and the Lexington Center for Recovery took over the county’s mental health services at 47 W. Market St.

Previously the Lexington Center for Recovery had been operating out of Northern Dutchess Hospital. As part of the transition in 2011, Lexington began to offer holistic treatment for chemical abuse and dependency within the building at 47 W. Market St. However, a witness called by Martin, Amy D’Antonio, said she has worked at the site since 2004 and had created treatment programs for clients that focused on recovery from substance addictions before 2011. D’Antonio is a Certified Rehabilitation Counselor employed by Occupations, Inc. in the building.

Marvin, the attorney representing three neighbors to the facility, told the board that the village has a strict “change of use” definition and that the site should have been reviewed in 2011 when the tenants changed. He presented the board with a seven-page memo on why the property has violated zoning procedure rules.

“Was there certainly some addiction and recovery rehab services (prior to 2011)? I don’t doubt that there were. But it wasn’t the primary use. It was probably an ancillary use at best,” said Marvin of why introducing the Lexington Center for Recovery to the facility without alerting the zoning board violated the non-conforming use laws.

“You can’t just give it this big umbrella,” Marvin added of the use of the building. He also said the change of tenants within the building should have been brought to the board’s attention.

Beginning in May, neighbors complained to village officials about clients from the center loitering outside of the building and exhibiting behavior that caused neighbors to feel unsafe. There have also been complaints about the additional traffic that patients’ Medicaid taxis cause for the village.

A site plan review would take into account changes in the traffic, if any, created by the building’s new tenants, the occupancy requirements, and other safety concerns.

Martin requested time to respond to the information provided by Marvin and the board agreed he could have three weeks. The board said it intends to find a date in early January to meet to continue review of the case.